As the Prime Minster acknowledged in his statement to the House of Commons,the air strike was a significant departure from previous military operations:

“Is this the first time in modern times that a British asset has been used to conduct a strike in a country where we are not involved in a war? The answer to that is yes. Of course, Britain has used remotely piloted aircraft in Iraq and Afghanistan, but this is a new departure.”

“The Government’s explanations of the rationale for its actions on 21st August raise a number of important questions about the change of policy, which was not the subject of any prior scrutiny or debate in Parliament. The Prime Minister, the Defence Secretary, the Attorney General, the Foreign Secretary and the UK’s Permanent Representative to the UN have all provided explanations which differ in some important respects and raise significant questions about what the Government’s policy now is and its legal basis.”

“The Government has not published any formulated policy on the use of drones for targeted killing. As a result there is a lack of clarity about the policy; about whether and how the legal frameworks of international humanitarian law, international human rights law and ordinary criminal law apply; and about the relevant legal tests and principles that apply to the use of lethal force in such circumstances.

It is not clear how the relevant decision-makers test the sufficiency of evidence, who checks that the tests are satisfied, and what the framework of accountability is. The uncertainty not only makes accountability difficult, it potentially exposes front line personnel to criminal liability for the unlawful use of lethal force.”

In other words the Committee is focusing on the legality and policy of UK targeted killing. While the inquiry is significant in its attempt to maintain proper public oversight of UK military operations, there is a something of a danger that the Committee could inadvertently contribute towards the normalisation of British targeted killing outside war zones by insisting that policy and processes are put in place for such activity rather than condemning it outright. The UK should simply not be following the US in its use of drones for targeted killing outside of the strict circumstances allowed under international law.

Targeted killing

In his statement to MPs, the Prime Minister argued that the strike was undertaken as an act of self-defence by the UK under Article 51 of the UN Charter. Given that the UK had not been granted authority to use lethal force in Syria, either by the Syrian authorities or the United Nations, International Humanitarian Law (the laws of war) do not apply and therefore the strike must comply with International Human Rights Law. In such circumstances the use of lethal force would only be lawful if it is absolutely necessary to stop an immediate threat to life. However according to the publicly available information it appears that such circumstances did not exist. While Khan had been linked in press reports to potential attacks on public events in the UK, importantly those events had already taken place at the time of the strike.

Indeed the Prime Minister told parliament in his statement that it had been decided that “should the right opportunity arise, military action should be taken” against Khan – hardly the imminent circumstances that are needed under the law.

Perhaps because of these difficulties with the justification of the strike as self-defence of the UK, in its official letter to the United Nations about the strike, the UK stated additionally that the action had been taken “in the collective self-defence of Iraq”. The UK is participating in a non-international armed conflict within Iraq (at the request of the Iraqi authorities) and international Humanitarian Law does apply within Iraq. However, the government argues that as this conflict is in part being undertaken from the territory of Syria, the UK’s authority for undertaking military action as part of the protection of Iraq expands into Syria. This is highly controversial to say the least. For an excellent summary of the law on this area see the submission from Christof Heyns, Dapo Akande and others.

Some key questions

Was the August 21 strike undertaken in response to an immediate and imminent threat to life in the UK, or was Reyaad Khan and others put on a ‘kill list’ to be targeted when “the right opportunity” arose? If so is the UK following the US redefinition of ‘imminence’ in relation to self-defence?

If the strike was undertaken in collective self-defence of Iraq, in what way did Reyaad Khan pose a direct and imminent threat to the security of Iraq on 21 August? Was it because of his membership of ISIL alone or were other factors involved?

Does the government believe that it has lawful authority to undertake strikes against members of ISIL wherever they are (for example in Libya) rather than just in declared war zones? If so what are the limits of that authority?

Drones and targeted killing

As stated in our written submission to the inquiry, ethicists and campaigners have long voiced concerns about armed drones appear to be lowering the threshold for use of force. All three countries that have used armed drones to launch strikes outside of their own territory have now also used them to undertake the targeted killing of individuals beyond the generally accepted provisions of international law (although unsurprisingly the countries themselves refute this).

While this inquiry is focusing particularly on legal issues associated with drone targeted killing, nevertheless it would be important to investigate whether the availability of the technology itself had any impact on the decision to undertake the targeted killing, in an attempt to answer some of the underlying ethical questions associated with the use of drones.

Some key questions

Why was the strike carried out by an unmanned Reaper drone rather than a Tornado, particularly as the government has been publicly proclaiming the accuracy of the British Brimstone missile carried by the Tornado but not the Reaper?

Did the availability of unmanned drones to carry out the strike impact on the decision to carry out such a strike either at the ‘in principle’ level and/or at the practical level? In other words if the UK had not had such a capability, would the targeted killing have been carried out?

Did the fact that armed British drones were regularly crossing into Syrian airspace from Iraq since November 2014 impact at all on the decision to launch the drone strike of 21 August in Syria?

Answers?

While these are just a few of the many questions that could be put to the Defence Secretary, indications so far are that answers may not be forthcoming. The first evidence session for the inquiry had to be cancelled due to a lack of even a written response from the MoD, resulting in Committee Chair Harriet Harman writing a strong letter to Michael Fallon demanding “immediate attention to a number of requests made by the Joint Committee on Human Rights to which the Government has, so far, failed to respond.”

Michael Fallon finally responded to the Committee last week agreeing to appear himself but without senior MoD legal advisors, and supplying a brief memorandum purporting to answer the questions posed. However as Harman immediately responded, the memo “does not even begin to answer any of the detailed questions we asked” and stating:

“The Committee is also disappointed by your refusal to allow the relevant Government lawyers to appear before the Committee. There are many questions about the availability of legal advice in the decision-making process that are central to our inquiry and, while the Committee fully respects the Government’s right to legal professional privilege, it would still like the opportunity to explore some of these questions with a Government legal adviser with relevant knowledge of the process. The Committee would therefore like to ask that you be accompanied by the MoD’s Legal Adviser when you give evidence to us on 16 December.”

Almost everyone involved in the debate on the use of armed drones, including UN Human Rights experts, the Defence Select Committee and the Birmingham Policy Commission on drones – agree that there needs to be increased transparency and better public oversight and understanding of the use of armed drones. This week Michael Fallon has an opportunity to provide evidence that the British government is listening and responding to that reasonable request.

Thanks for the comments Josh. Call me cynical but the idea that this 21 year-old guy, thousands of miles away, can be a threat to the UK “at any moment and without warning” should be treated with appropriate suspicion. It is convenient, to say the least, that the government are able to make this claim and rely on it for legal authority without putting any evidence into the public domain.

British Reapers have never used Brimstone missiles – those were US tests in the US. Tornado’s are using Brimstones on operations in Iraq already.

No problem. I think your suspicion is fair. From what I’ve been reading, it sounds like Khan could have been directing, or an essential communication like for, a plot to be carried out by jihadists who had already, or were in the process of returning, and his elimination was the only realistic way of disrupting it. Although, I am just speculating.

Regarding why drones over Tornados (or other options in different scenarios), I am hoping to look into the legal issues of this soon-ish on my blog (https://joshuaghughes.wordpress.com/). I think the issues of feasibility might have changed in recent times, with drones offering a significantly longer time frame, and distance than jets, or special force – and inclusion of post-action events in the calculus, seeing as CIA Black Sites, or similar, are now not an option, targeted killing can offer a less bureaucratically messy outcome.

Welcome

Drone Wars UK provides information and comment on the growing use of armed drones. As we are based in the UK we focus on the use of British drones but also include information about armed drones in general.